Opinion
March 21, 1977
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered September 26, 1975, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The findings of fact are affirmed. Upon the trial the defendant, who was indicted for burglary in the third degree, requested the court to submit to the jury the lesser included offenses of attempted burglary in the third degree and criminal trespass. Although the prosecutor agreed to this request, the trial court refused to do so, holding that, as a matter of law, the defendant either was guilty of burglary in the third degree or was not guilty of anything. This was error, as the District Attorney concedes. It may not be said on the record presented that no reasonable view of the evidence exists which would support a finding that defendant committed the lesser offense but did not commit the greater one (cf. CPL 1.20, subd 37; 300.50; People v Henderson, 41 N.Y.2d 233, 235-237 and cases there cited]). Martuscello, Acting P.J., Cohalan, Rabin and Mollen, JJ., concur.